ENDNOTES

Chapter 11 Anthony D. Smith, National Identity (Reno, Nevada: University of Nevada Press, 1991), 70.2 Anthony D. Smith, ‘States and Homelands: the Social and Geopolitical Implications of National Territory’,

Millennium: Journal of International Studies, 10 (3), 187–202, 187.3 Hillel Steiner. ‘Territorial Justice’, in Theories of Secession, Percy B. Lehning ed. (Routledge, London and

New York, 1998), pp. 60–70, on p. 64.4 David Miller, On Nationality, Clarendon Press (Oxford, 1995), Chap. 1, pp. 1–2.5 E.g.: Allen Buchanan, Secession—The Morality of Political Divorce from Fort Sumter to Lithuania and

Quebec (Westview Press, Colorado, U.S.A. and Oxford, England, 1991); Lea Brilmayer, ‘Secession Self-determination: A Territorial Interpretation’, 16 Yale INT L.J. (1991), 177; Margaret Moore (ed.) NationalSelf-Determination and Secession (Oxford University Press, Oxford, 1998); David Miller, ‘Secession andthe Principle of Nationality’, in J. Couture, K. Nielsen and M. Seymour (eds.), Rethinking Nationalism(University of Calgary Press, Calgary, Alberta, Canada, 1998), 261–282; and in Moore, National Self-Determination and Secession pp. 62–78, and in David Miller, Citizenship and National Identity, (PolityPress, Oxford, Cambridge and Malden, MA, 2000), Chap. 7, pp. 110–124; Joseph Raz, and AvishaiMargalit, ‘National Self-Determination’, 87 The journal of Philosophy (1990), 439, and in: Joseph Raz,Ethics in the Public Domain (Clarendon Press, Oxford, 1994), 125–145 (which, despite its title, basicallypresents a theory of secession); and Percy B. Lehning (ed.) Theories of Secession (Routledge, Londonand New York, 1998).

6 These include anything from the demands of aboriginal peoples in Western states, which are not necessarilysecessionist in nature, to the conflicting demands of Serbians and Albanians to Kosovo. Even the Israeli-Palestinian dispute is not strictly (i.e. legally) speaking a matter of secession.

7 This, for instance, is the approach I attribute to Margaret Moore, in ‘The Territorial Dimension of Self-Determination’, in Margaret Moore (ed.) National Self-Determination and Secession (Oxford: OxfordUniversity Press, 1998).

8 Cf: Margaret Moore, The Ethics of Nationalism (Oxford & New York: Oxford University Press, Oxford,2001), 195–196, where she goes some way towards modifying her previous view expressed in Moore,‘The Territorial Dimension of Self-Determination, ibid’.

9 For the idea that morally valid views are plural, and that two of the reasons for this may be first, attributingdifferent weight to various conflicting moral values, and, second the unpredictability of the future, see:Isaiah Berlin, The Crooked Timber of Humanity—Chapters in the History of Ideas (London: HenryHardy Ed., Fonatana Press, 1990), Chap. 1, ‘The Pursuit of the Ideal’, 1–19, 12, 14, 17.

10 As of the last few years, liberal nationalism’s neglect of territorial issues is, admittedly, not alltogetherwithout exception. See: David Miller, Citizenship and National Identity (Cambridge, Oxford and Malden,MA: Polity Press, 2000), esp. Chapters 7, 8. In particular, Miller’s analysis of nationality in dividedsocieties sheds light on some difficult territorial questions in a way that no other theoretical account ofliberal nationalism had done before. See also: Moore, The Ethics of Nationalism. Part two of this bookdeals specifically with land, though in keeping with the author’s previous work it concentrates almostexclusively on secession. An exception to this can be found in Chapter 7, which follows up her previouswork in: Moore, ‘The Territorial Dimension of Self-Determination’. Most recently, see: Chaim Gans,The Limits Of Nationalism, Cambridge: Cambridge University Press (forthcoming). I refer to the worksof all three authors extensively throughout this book. Notwithstanding such limited references to territorywithin liberal nationalism, alongside the more common attention focused on the very specific issue ofthe right to secession, this doctrine still lacks any kind of complete and systematic study of territorialissues which, I maintain, ought rightly to be at the very center of any adequate theory of nationalism.

11 See: Chaim Gans, ‘Nationalism—A Normative typology’ forthcoming in: Chaim Gans, The Limits OfNationalism; Neil McCormick, ‘Liberal Nationalism and Self-Determination’, in D.M. Clarke, and

122 ENDNOTES

Ch. Jones (eds.) The Rights of Nations—Nations and Nationalism in a Changing World (Cork UniversityPress), Chap. 3, 65–87, 76–77); Yael Tamir, Liberal Nationalism (Princeton: Princeton University Press,1993), most notably in Chapters 2 and 3; David Miller, Citizenship and National Identity (Cambridge,Oxford and Malden, MA: Polity Press, 2000), Chap. 2.

12 For examples of this brand of ‘liberal nationalist’ arguments see e.g. McCormick, ‘Liberal Nationalismand Self-Determination’, and Tamir, Liberal Nationalism; though both contain other forms of argumentsas well.

13 Chaim Gans, ‘The Liberal Foundations of Cultural Nationalism’, Canadian Journal of Philosophy, 30 (3)(September 2000), 441–466, 441.

14 The most well-known author of this type of argument is probably Will Kymlicka, Liberalism Communityand Culture (Oxford: Clarendon Press, 1989); Multicultural Citizenship: A Liberal theory of MinorityRights (Oxford: Clarendon Press, 1995).

15 Kymlicka in affect dedicates much of Multicultural Citizenship to answering this critique which applies tohis earlier Liberalism, Community and Culture. Gans, ‘The Liberal Foundations of Cultural Nationalism’,443, cites many critics of this liberty-based argument for nationalism. He mentions Avishai Margalitand Moshe Halbertal, ‘Liberalism and the Right to Culture’, Social Research 61 (1994), 491–510,504; Jeremy Waldron, ‘Minority Cultures and the Cosmopolitan Alternative’, University of MichiganJournal of Legal Reform 25 (1992), 751–93; John Danley, ‘Liberalism, Aboriginal Rights and CulturalMinorities’, Philosophy and Public Affairs 20 (1991), 168–185, 172.

16 Gans, ‘The Liberal Foundations of Cultural Nationalism’, 445–448, constructs an independent defenceof ‘liberal nationalism’ based on this second argument concerning identity, side by side with his dis-cussion and critique of the first. Yael Tamir, Liberal Nationalism, on the other hand, uses both argu-ments almost interchangeably (see e.g. pp. 35–36), as do Raz and Margalit in their ‘National Self-Determination’.

17 Gans, ‘The Liberal Foundations of Cultural Nationalism’, 446. Margaret Moore presents an identity-basedargument for national rights in Moore, The Ethics of Nationalism, Chapters 2, 3.

18 As Moore has recently pointed out: “ . . . a normative theory of nationalism should consider the constitutiveelements of people’s identities, and this may include the role played by the group’s conception of theirhomeland, and the bonds of attachment to territory that they feel”. Moore, The Ethics of Nationalism,ibid, 176. However, she does not attribute a sufficiently prominent place to territory amongst the variouscomponents of collective national culture and personal identity, and consequently fails to pursue thisobservation to the extent and depth that it deserves.

19 See (in the following order): John Stuart Mill, Representative Government, in Geraint Williams (ed.)Utilitarianism, On Liberty, Considerations On Representative Government, Remarks On Bentham’sPhilosophy (London and Vermont: Everyman, 1993), 188–428, Chapter 16; David Miller, On Nationality(Oxford: Clarendon press, 1995); Yael Tamir, ‘Pro Patria Morti!—Death and The State’, in Robert Mckimand Jeff McMahan (eds.), The Morality of Nationalism (Oxford & New-York: Oxford University Press,1997), 227–241; Margaret Moore, The Ethics of Nationalism, Chapter 4: “Instrumental Arguments (Or,Why States Need Nations)”, 74–101.

20 John Locke, The Second Treatise of Government, Thomas P. Peardon (ed.), (New Jersey: The Library ofLiberal Arts, Prentice-Hall, Inc., 1952), Chap. 5.

21 For a variety of recent criticisms of Locke on the grounds of overlooking the distinction between privateproperty and national sovereignty and for the consequent flaw in his swift move from one to the other,see: Paul Gilbert. The Philosophy of Nationalism (Oxford: Westview Press, 1998), 102–104; AllanBuchanan. ‘The Making and Unmaking of Boundaries: What Liberalism Has to Say’ in Allen Buchananand Margaret Moore, eds. Making and Unmaking Boundaries, Princeton University Press, PrincetonNew Jersey, forthcoming); Lea Brilmayer. ‘Consent, Contract, and Territory’, Minnesota Law Review74 (1) (1989), 1–35, 14–15. For a more general objection to the analogy between private property andstate sovereignty, see: Moore, The Ethics of Nationalism, 166.

22 Brilmayer. ‘Consent, Contract, and Territory’, 15.23 Gilbert. The Philosophy of Nationalism, 102–103.24 Ross Poole, ‘National Identity, Multiculturalism, and Aboriginal Rights: An Australian Perspective’, in

J. Couture, K. Nielsen and M. Seymour (eds.). Rethinking Nationalism, (Calgary, Alberta: University ofCalgary Press, 1998), 407–438, 427, in reference to the case of Mabo vs. Queensland.

25 Thomas Baldwin mentions this outdated territorial claim in ‘The Territorial State’, 209. He also quotesRousseau, in whose time this justification was still prevalent and who mockingly rejected it as a justi-fication for territorial acquisition in the so-called ‘new world’. See: J.J. Rousseau, The Social Contractand Discourses, (London and Vermont: Everyman, 1993), book I, Chap. 9, 197.

ENDNOTES 123

26 Allan Buchanan, ‘The Making and Unmaking of Boundaries: What Liberalism Has to Say’ in AllenBuchanan and Margaret Moore, eds. Making and Unmaking Boundaries, Princeton University Press,Princeton New Jersey, forthcoming), 15–16, Notwithstanding this, Buchanan argues that some exceptionto this can be made in the name of self-defence. According to Buchanan, ‘There is, however one possibleexception to the general principle that conquest is not a legitimate mode of acquiring territory accordingto liberal theory: the proposal that what may be called pre-emptive self-defense might under certain highlyconstrained circumstances justify the forcible taking of territory for the purpose of incorporation.’

27 Joseph Raz and Avishai Margalit, ‘National Self-Determination’, in Joseph Raz, Ethics in the PublicDomain (Oxford: Clarendon Press, 1994), 125–145, 125.

28 Cf: Thomas Baldwin, ‘The Territorial State’, in H. Gross and T. Harrison (eds.) Jurisprudence—CambridgeEssays, (Oxford: Clarendon Press, 1992), Chap. 10, 207–230, 209: ‘if some political societies haveterritories, then, given the finite area of land available, all had better have them’, and this is assumed tobe the case regardless of the fact that the initial premise remains to be justified.

29 For a taste of the vast literature which does deal directly with the question of justifying state sovereignty(for and against) and its extent, as well as with some of its other aspects, see: Jens Bartelson, A Ge-nealogy of Sovereignty (Cambridge: Cambridge University Press, 1995); Joseph A. Camilleri and JimFalk, The End of Sovereignty? The Politics of a Shrinking and Fragmenting World (Hants (England) andVermont: Edward Elgar Publishing, Ltd., 1992); Sohail H. Hashami (ed.) State Sovereignty—Changeand Persistence in International Relations (Pennsylvania: The Pennsylvania State University Press,University Park, 1997); Marianne Heiberg (Ed.) Subduing Sovereignty—Sovereignty and the Right toIntervene (London: Pinter Publishers, 1994); F.H. Hinsley, Sovereignty (Cambridge: Cambridge Uni-versity Press, 1996); John Hoffman, Sovereignty (Buckingham: Open University Press, 1998); CharlesJones, Global Justice—Defending Cosmopolitanism (Oxford: Oxford University Press, 1999) Chap. 8,203–226; Stephen P. Krasner Sovereignty—Organized Hypocrisy (Princeton: Princeton University Press,1999); Gene M. Lyons and Michael Mastanduno (eds.) ‘Beyond Westphalia?’—State Sovereignty andinternational intervention (Baltimore and London: The John Hopkins University Press, 1995); CynthiaWeber, Simulating Sovereignty—Intervention, the State and symbolic Exchange (Cambridge: CambridgeUniversity Press, 1995).

30 Joseph Raz, The Morality of Freedom, 166; Joseph Raz, ‘On the Nature of Rights’ Mind 93 (1984) 194,195. ‘ “X has a right” if and only if X can have rights and, other things being equal, an aspect of X’swell-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty’.

31 Raz, The Morality of Freedom, 207–209.

Chapter 21 Joseph Raz, The Morality of Freedom (Clarendon Press, Oxford, 1986), 166+207–209; and: J. Raz, ‘On the

Nature of Rights’, 93 Mind (1984), 194.2 Raz, The Morality of Freedom, ibid, 166; and: ‘On the Nature of Rights’, ibid, 195.3 Raz, The Morality of Freedom, ibid, 208.4 Ibid.5 Ibid, 209.6 Joseph Raz and Avishai Margalit, ‘National Self-Determination’, The Journal of Philosophy 87 (1990),

439–461 and in: Joseph Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1994), 125–145.7 Peter Jones, ‘Group Rights and Group Oppression’, The Journal of Political Philosophy 7 (4) (1999), 353–

377; and Denise G. Reaume, ‘The Group Right to Linguistic Security: Whose Right? What Duties?’ inJudith Baker (ed.) Group Rights (Toronto: University of Toronto Press, 1994), 118–141.

8 Reaume, 120–121.9 Ibid.10 Ibid, 120.11 It is doubtful whether Raz could accept this, since one of his main points is precisely that some rights are

collective because their corresponding duties can be justified only when many such interests exist. Thequestion of whether any particular right of the kind Reaume has in mind would, indeed, be justified asan individual one would depend then on the severity of the correlative duties involved.

12 Jones, ‘Group Rights and Group Oppression’, 356–359. Reaume, ‘The Group Right to Linguistic Security’,122–123, hints at this point as well though she does not develop it or make it the main focus of herargument.

13 Jones, 359.

124 ENDNOTES

14 Raz, The Morality of freedom, 208.15 Jones, ‘Group Rights and Group Oppression’, 357, his footnote 7, in reference to Raz’s The Morality of

Freedom, 208.16 Jones, 357, note 7.17 Ibid.18 Raz, The Morality of Freedom, 208, emphases added.19 Ibid.20 Yael Tamir, Liberal Nationalism (Princeton, New Jersey: Princeton University Press, 1993), Chap. 2, 42–

48, where she asks whether the right to culture is a communal right and answers in the negative; and:Yael Tamir, ‘The Right to National Self-Determination’, Social Research 58 (3) (Fall 1991), 565–590,where she relies throughout on the same view.

21 Ibid.22 Raz, The Morality of Freedom, 208; Raz and Margalit ‘National Self-Determination’, throughout the

article.23 In several places, Tamir states outright that she is relying on Raz’s definition of a right. See: Tamir, ‘The

Right to National Self-Determination’, in footnote 1; Tamir, Liberal Nationalism, 172. In other places itis implied that she is basing herself on the interest theory. This definition will therefore not be broughtinto question here.

24 Tamir, ‘The Right to National Self-Determination’, 582–590; Tamir, Liberal Nationalism, 42–48, whereshe discusses the right to culture.

25 Tamir, Liberal Nationalism, 47.26 Michael Hartney, ‘Some Confusions Concerning Collective Rights’, in: Will Kymlicka (ed.) The Rights

of Minority Cultures (Oxford: Oxford University Press, 1995), 202–227. Note that Hartney’s critique isalso partially aimed at Raz’s account of collective rights, but that he, unlike Tamir, also criticizes somefurther aspects of Raz’s theory of rights in general: Hartney, 203, 207, 212.

27 Hartney, ‘Some Confusions Concerning Collective Rights’.28 Kukathas, ‘Are There Any Cultural Rights’ in: Kymlicka (ed.) The Rights of Minority Cultures, 228–252.29 Ibid, esp. in sections IV and V, pp. 245–252.30 Jones, ‘Group Rights and Group Oppression’, 361–362. I must add here that I myself am not totally

convinced by these remarks, since the rights Raz speaks of are nonetheless said to be possessed by thegroup as such (and not by its members, as Jones seems to claim on p. 362). This may leave some roomfor conceptual questions of the kind raised by Tamir.

31 The list of contemporary writers who accept this view is virtually endless. A few of these authors and theirpublications are: L.W. Sumner, The Moral Foundations of Rights (Oxford: Clarendon Press, 1987), 209–211; Will Kymlicka: The Rights of Minority Cultures, see esp. 1–27; Liberalism, Community and Culture(Oxford: Oxford University Press, 1989) where he first argues against the traditional liberal oppositionto collective rights for minority cultures; Multicultural Citizenship: A Liberal theory of Minority Rights(Oxford: Clarendon Press, 1995), see esp. p. 33 where he explains his preference for the term ‘MinorityRights’ to denote the specific type of collective rights which concern him in much of his writing; JudithBaker (ed.) Group Rights (Toronto: University of Toronto Press, Toronto, 1994) and the many interestingarticles within it. In particular see: Denise G. Reaume, ‘The Group Right to Linguistic Security’ and:Leslie Green, ‘Internal Minorities and Their Rights’, in J. Baker (ed.) Group Rights, 101–117. Forsome more specific discussion of the concept of collective rights see: Marlies Galenkamp, Individualismand Collectivism: the Concept of Collective Rights (Rotterdam Filosofiche Studies, Rotterdam, 1993);Ronald Garet, ‘Communality and Existence: The Rights of Groups’, Southern California Law Review56/5 (1983), 1001–1075. Ian MacDonald, ‘Group Rights’, Philosophical Papers 28/2 (1989), 117–136; Michael McDonald (ed.), Collective Rights, special issue of the Canadian Journal of Law andJurisprudence 4/2 (1991), 217–419; Douglas Sanders, ‘Collective Rights’, Human Rights Quarterly 13(1991), 368–86. Vernon Van Dyke views such rights as ‘corporate rights’ rather than ‘collective. VernonVan Dyke, ‘Collective Rights and Moral Rights: Problems in Liberal-Democratic Thought’, Journalof Politics, 44 (1982), 21–40; V. Van Dyke, Human Rights, Ethnicity and Discrimination (Westport:Greenwood Press 1985); and: V. Van Dyke, ‘The Individual, the State, and Ethnic Communities inPolitical Theory’, reprinted in W. Kymlicka (ed.) The Rights of Minority Cultures, 31–56. For a recentdiscussion of group rights see: Brian Barry, Culture and Equality (Cambridge: Polity Press, 2001),Chap. 4, 112–154.

32 I assume throughout my argument that we do want to do this. The list of prominent subscribers to the interesttheory is another long one. I shall therefore restrict the list to a sapling of those authors who explic-itly state that they base themselves on Raz’s definition of rights. These include: Chaim Gans, ‘Historical

ENDNOTES 125

Rights—The Evaluation of Nationalist Claims to Sovereignty’, Political Theory 29 (1), (February 2001),58–79; Leslie Green, ‘Internal Minorities and Their Rights’, 102–103; Avishai Margalit in: Raz and Mar-galit, ‘The Right to National Self-Determination’ and in: Avishai Margalit ‘Historical Rights’, (Hebrew),35 Iyun, pp. 252–258; Yael Tamir, ‘The Right to National Self-Determination’, in her firs footnote 1, andTamir: Liberal Nationalism, 172; Jeremy Waldron, The Right to Private Property (Oxford: ClarendonPress), 84–87; Denise Reaume, ‘The Group Right to Linguistic Security- . . . ’, 119. Both David Lyonsand Neil MacCormick are associated with interest-based definitions of rights which precede Raz’s. Someof these names are also listed by Peter Jones in his aforementioned ‘Group Rights and Group Oppres-sion’, 356, footnote 2. Jones additionally names: Nathan Brett, Michael Freeman, Moshe Halbertal, all ofwhom adhere to Raz’s interest conception of rights (though, as Jones points out, not always to everythinghe says about rights in general or group rights in particular).

33 Tamir, Liberal Nationalism, 45; ‘The right to National Self-Determination’, 588.34 Tamir, Liberal Nationalism, ibid. In ‘The Right to National Self Determination’, 588, ibid, she says

precisely the same thing with regard to this particular right.35 This is the paraphrased essence of her argument. It appears in a somewhat more specific form in her

Liberal Nationalism, ibid, 45, in connection to the right to culture; and in ‘The Right to National Self-Determination’, ibid, specifically in reference to this latter right.

36 Tamir, Liberal Nationalism, ibid;’ The Right to National Self-Determination’, ibid.37 Tamir, Liberal Nationalism, 45.38 Raz and Margalit, ‘National Self-Determination’, in: Joseph Raz, Ethics in the Public Domain, 139. (See

also the longer version of this article: Joseph Raz and Avishai Margalit, ‘National Self-Determination’,87 The Journal of Philosophy (1990), 439–461, on pp. 454–455.)

39 E.g., the fact that we do not think individuals are entitled to take a part of their territory with them if theyleave their nation-state.

40 John Locke. The Second Treatise of Government, Thomas P. Peardon ed. (The Library of Liberal Arts,Prentice-Hall Inc. New Jersey, 1952), Chap. 5 ‘On Property’, pp. 26–30.

41 Ibid, p. 24.42 Ibid, Par. 192.43 Paul Gilbert, The Philosophy of Nationalism (Westview Press, Oxford, 1998), 101.44 Ibid. See also: Ross Poole, Nation and Identity, (Routledge, London & New York, 1999), on p. 131, where

he makes a similar point about the territorial holdings of the aboriginal peoples of Australia.45 Gilbert, 102–104.46 Locke, Par. 35, emphasis added. On the possibility of Locke viewing property in land as joint or collective,

see also Locke, Chap. 8: ‘Of the Beginning of Political Society’, Par. 120, 121, and: John Simons,‘Historical Rights and Fair Shares’, 14 Law and Philosophy (1995), 149–184, 181–182.

47 Hillel, Steiner. ‘Territorial Justice’, in Theories of Secession, Percy B. Lehning ed. (Routledge, Londonand New York, 1998), 60–70, 66.

48 Steiner, ibid.49 Locke, Chap. 8, ‘Of the Beginning of Political Society’, esp. on pp. 68–69.50 Thomas Baldwin, ‘The Territorial State’, in: Jurisprudence—Cambridge Essays, H. Gross and R. Harrison

eds. (Clarendon Press, Oxford, 1992), Chap. 10, 207–230, 213.51 Ibid.52 Ibid.53 Ibid.54 Ibid.55 This is not to say that Locke himself was perfectly consistent on this matter. He certainly was not. What

I have argued for is that his text can be construed in a way that enables a consistent reading andunderstanding of the issue at hand.

56 Ross Poole, ‘National Identity, Multiculturalism, and Aboriginal Rights: An Australian Perspective’, inRethinking Nationalism, J. Couture, K. Nielsen and M. Seymour eds. (University of Calgary Press,Calgary, Alberta, Canada, 1998), pp. 407–438, on p. 427, in reference to the case of Mabo vs. Queensland.Later, on p. 428, Poole remarks that, in view of the special, complex relationship between the aboriginalpeople of Australia and the land, it is hard in practice to draw such a distinction concerning their rightsto it. See also: R. Poole, Nation and Identity. But the theoretical distinction, which applies more clearlyto other cases, still holds.

57 Steiner, ‘Territorial Justice’, 65.58 Steiner, ibid, 68. A similar statement is made earlier, on p. 66, to the effect that: ‘a nation’s territory is

legitimately composed of the real-estate of its members’.

126 ENDNOTES

59 Ibid, 66.60 No doubt, grievances concerning ‘stolen’ property are sometimes involved in these territorial demands,

as in the case of many aboriginal peoples’ claims, but these are nonetheless not the essence of groups’territorial aspirations.

61 See for example, Anthony D. Smith, National Identity (Reno, Nevada: University of Nevada Press, 1991),where Smith remarks that: ‘Nationalism is primarily about land’. See also National Identity pp. 9, 11,13–15, 40, 43, where territory (historic territory) is referred to by Smith as an essential feature of thedefinition of nationalism. See also: Margaret Moore, The Ethics of Nationalism (Oxford & New York:Oxford University Press, 2001), 176.

62 I realize that Steiner would not be particularly bothered by this criticism. As I will argue when confrontinghis work directly in Chapter 7, he appears to ignore the nationalist aspect deliberately, since it does notfigure in his theory of what state property rights amount to. He is committed to the view that these arenothing but aggregates of their members’ real-estate holdings and is comfortable with the consequencesthereof.

Chapter 31 The fact that ‘claims are still made today that Kosovo is the ‘Jerusalem’ of the Serbs’ is pointed out

by Noel Malcolm as well Malcolm, however, also stresses that ‘this has always been something of anexaggeration’. See Noel Malcolm, Kosovo—A Short History (Macmillan, London, 1998), Introduction,p. xxxi.

2 John Locke. The Second Treatise of Government (Thomas P. Peardon ed., Prentice Hall/The Library ofLiberal Arts, New Jersey, 1952). esp. Chapter 5; R. Nozick. Anarchy, State, and Utopia (Basic Books,Harper Collins Publishers, USA, 1974).

3 Anthony D. Smith, ‘States and Homelands: the Social and Geopolitical Implications of National Territory’,Millennium, Journal of International Studies 10 (3), 187–202, 193; and: National Identity, UniversityOf Nevada Press (Reno, Nevada, U.S.A, 1991), 9.

4 National Identity, 9, 11, 13–15, 40, 43. Other references to historic territories are made by Smith on pp. 70,117, 124, 127.

5 Smith, National Identity, 9–15.6 Smith, National Identity, 14.7 Anthony D. Smith, Myths and Memories of the Nation (Oxford University Press, Oxford, 1999), Chapter 8

on p. 219; see also Chapter 5, pp. 149–157.8 David Miller, On Nationality, Clarendon Press (Oxford, 1995), 22–27.9 Miller, On Nationality, 106.10 Ibid, 121.11 Thomas Baldwin, ‘The Territorial State’, in: Jurisprudence—Cambridge Essays, H. Gross and R. Harrison

eds. (Clarendon Press, Oxford, 1992), Chapter 10, 207–230, 227.12 Ibid, 228.13 Jeremy Waldron: ‘Superseding Historic Injustice’, Ethics 103 (October 1992), 4–28, 19.14 Baldwin, 229.15 Yael Tamir, ‘Theoretical Difficulties in the Study of Nationalism’, in Rethinking Nationalism, Jocelyn

Couture, Kai Nielsen and Michel Seymour (eds.) (Calgary Alberta: University of Calgary Press, 1998),65–92, 73.

16 Chaim Gans, ‘Historical Rights—The Evaluation of Nationalist claims to Sovereignty’, Political Theory,Vol. 29 (1) (February 2001), 58–79, 59–60. See also Chaim Gans, The Limits of Nationalism, (Cambridge:Cambridge University Press, 2003), Chapter 4.

17 Gans, ‘Historical Rights’, ibid., 60.18 Ibid.19 Margaret Moore, ‘The Territorial Dimension of Self-Determination’, in Margaret Moore (ed.) National

Self-Determination and Secession (Oxford: Oxford University Press, 1998), 134–157, 137. These argu-ments are repeated in Margaret Moore, The Ethics Of Nationalism (Oxford and NY: Oxford UniversityPress, 2001), 189–190, 196. Though the author appears to moderate her wholesale dismissal of historicalclaims in this later work, she essentially restates her previous argument, re-emphasizing the problems sheattributes to historical justifications. She recognizes the merits of historical arguments only when they areconjoined with present occupancy, and for reasons pertaining to that occupancy rather than anything else.For practical reasons, she admits that achieving peace settlements may entail taking groups’ subjective

ENDNOTES 127

feelings, i.e. their own historical narrative, into account, but she still attributes little, if any, normativeweight to the fact that they bear such historical ties (‘feelings’) to the lands they lay claim to. In so far asshe has any normative concern for nations’ historical ties to land, they are, by her own admission, onlynormative in the sense that recognizing their existence may be instrumental to achieving the moral goalsof peace and stability.

20 Moore, ‘The Territorial Dimension of Self-Determination’, 145; The Ethics of Nationalism, 190.21 Moore, ‘The Territorial Dimension of Self-Determination’, 137.22 Ibid, 145; Moore, The Ethics of Nationalism, 190.23 Moore, ‘The Territorial Dimension of Self-Determination’, 141.24 Ibid, 142.25 Ibid, 154.26 Moore, ‘The Territorial Dimension of Self-Determination’, 145; The Ethics of Nationalism, 190.27 Gans, ‘Historical Rights’, 63; Baldwin, ‘The Territorial State’, 209. Both refer to Rousseau on this matter:

J.J. Rousseau, Social Contract, Book 1, Chapter 9.28 Gans suggests a similar, though unique, solution to this problem. His solution is connected to a further

distinction he draws between the right to sovereignty itself and the lesser right to locate sovereignty. Thisdistinction already presumes that the scope of the territory which the group is entitled to on the basisof its right to self-determination has already been determined by criteria stemming from principles ofdistributive justice. Gans, ‘Historical Rights’, 61–62. I shall not go into this distinction here, though Ido return to it, briefly, in the following section.

29 Gans, ‘Historical Rights’, 59–60 and 66–76.30 Gans, ‘Historical Rights’, 61, 68–69.31 Moore, ‘The Territorial Dimension of Self-Determination’, 145; The Ethics of Nationalism, 189.32 Moore, ‘The Territorial Dimension of Self-Determination’, 141–146; The Ethics of Nationalism, 184–191.33 Waldron: ‘Superseding Historic Injustice’, 19.34 Gans, 61, 68.35 Ha’aretz, Aug. 4th. 1998.36 Joseph Raz and Avishai Margalit, ‘National Self-Determination’, 87 Journal of Philosophy (1990) 439–

461; and in: Joseph Raz, Ethics in the Public Domain, Clarendon Press, Oxford, 1994), 125–145.37 Yael Tamir, Liberal Nationalism (Princeton University Press, Princeton, New Jersey, 1993), 52.38 Transylvania—The Roots of Ethnic Conflict (The Kent State University Press, 1983, J.F. Cadzow, A.

Ludanyi, and L.J. Elteto eds.), 232–233.39 Gans, 62–66.40 Gans, 62–63.41 Gans, ibid.42 Gans, 63–64.43 Gans, 64–66.44 Gans, ibid.45 Gans, ibid, 61–62.46 Gans, ibid.47 Gans, 65.48 Ibid.49 Ibid.50 Ibid.51 Ibid.52 Gans, 65–66.53 Gans, 66.54 Gans, ibid.55 Gans, ibid, 59.56 Gans, ibid, 59.57 Locke. The Second Treatise of Government, Chapter 5, pp. 17, 20.58 Waldron, The Right to Private Property, 176.59 John Douglas Bishop, ‘Locke’s Theory of Original Appropriation and the Right of Settlement in Iroquois

Territory’, Canadian Journal of Philosophy, Vol. 27, No. 3 (September 1997), 311–337, p. 314.60 Bishop, 336.61 Alasdair Macintyre, After Virtue—A Study on Moral Theory (Duckworth, London, 1981), 234.62 Joseph Raz, The Morality of Freedom, Chapter 10; Joseph Raz, ‘Free Expression and Personal Identifica-

tion’, in: Ethics in the Public Domain, (Clarendon Press, Oxford, 1994), 146–170, 150–151.

128 ENDNOTES

63 These considerations are mentioned by Gans in ‘Historical Rights’, 65–66.64 Here I am directly following Chaim Gans’ conception of historical rights as ‘rights to formative posses-

sions’. Gans, ‘Historical Rights’, 66–76.65 Gans, 59–61, 66–76.66 Gans, 60.67 Smith, ‘States and Homelands: the Social and Geopolitical Implications of National Territory’, 193;

National Identity, 9.68 Gans, ‘Historical Rights’, 66–76.69 Gans, 66.70 Smith, Myths and Memories of the Nation, 150.71 Gans, pp. 66–67.72 Gans, 67.73 Paul Gilbert, The Philosophy of Nationalism (Westview Press, Oxford, 1998), 99.74 Gilbert, 99–100.75 Gans, ‘Historical Rights’, 72. It is important to point out that this description is presented as part of Gans’s

discussion of the possibility that historical ties may be capable of grounding a territorial right which fallsshort of the sovereignty rights I am considering here. He himself believes that the normative implicationsof these ties are at most sufficient to ground this lesser right, which he dubs ‘the right to determine thesite of sovereignty.’ I have already referred to this unique distinction in my notes to section 3, and to myrejection of it.

76 Smith, National Identity, 14.77 Chaim Gans, ‘National Self-Determination’, The Canadian Journal of Law and Jurisprudence.78 Gans, 70–76.79 This is implied, ibid, p. 70.80 I am not here committing myself necessarily to the position that nothing can ever justify relocation, though

I lean towards that view. I am only claiming that historical connections in and of themselves cannotjustify this.

81 Miller, On Nationality, 24; Citizenship and National Identity (Cambridge: Polity Press, 2000), 29.82 See, Smith, National Identity, 14, as well as much of what emerges from my discussion of historical

arguments.83 Moore, “The Territorial Dimension of Self-Determination”, 145.84 It is important in this connection to note the distinction between granting rights that do not fully satisfy

the interests which underlie them, and granting rights which misinterpret, and therefore do not address,those interests at all. If I am hungry, my interest in food will be only partially, perhaps insufficiently,satisfied by granting me a smaller portion than I desire. Sometimes, for example, when others are hungryand provisions are scarce, it may be justified to give me only this meagre amount. But the point here isthat, whatever the case, my interest will not be addressed at all if, in response to my complaint of hunger,I am granted a right to a season’s opera tickets. In the latter case, it is not that I have not been grantedenough, it is that I have been granted the wrong kind of thing altogether.

85 These concluding remarks appear in an Israeli article containing some of Gans’s earlier thoughts onhistorical rights which were published in Hebrew only. Chaim Gans, ‘Historical Rights’, Mishpatim Vol.21 (Hebrew, 1992), 193–220, 219–220.

86 Gans, ‘Historical Rights’ (Hebrew), ibid.87 Gans, Chaim Gans, ‘Historical Rights—The Evaluation of Nationalist claims to Sovereignty’, Political

Theory, Vol. 29 (1), (February 2001), 58–79, 70.88 Gans, ‘Historical Rights’ (Hebrew, 1992), 216, his note 56.

Chapter 41 As far as I can see, the only alleged justification for acquisition and holding which would pose an obstacle

to these assumptions and to my attempt at evaluating the merits of corrective justice-type claims inthis kind of isolation would be a theory according to which the mere fact of forceful conquest legit-imizes territorial appropriation. If one was to accept such a theory, one could not then ask whether agroup who had been dispossessed by force had any valid claim. The negative answer to this questionwould, in such a case, be found in the theory of acquisition itself. On this account, if the territory inquestion has been successfully conquered, then no one but the conqueror has any legitimate claim to it.I, however, remain totally unbothered by this observation. The idea that conquest in and of itself can

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serve to justify territorial rights was dismissed out of hand, on liberal grounds, right at the outset of thisbook.

2 George Sher, Approximate Justice—Studies in Non-Ideal Theory (Rowman & Littlefield Publishers,Maryland, 1997), Chap. 1, ‘Ancient Wrongs and Modern Rights’; Jeremy Waldron: ‘Superseding His-toric Injustice’, Ethics 103 (October 1992), 4–28, 7–14; Will Kymlicka, Multicultural Citizenship: ALiberal theory of Minority Rights (Clarendon Press, Oxford, 1995), 220.

3 Sher, Approximate Justice, 18–19; 21–23, 25; Waldron, ‘Superseding Historic Injustice’, 7–14.4 Sher, Approximate Justice, e.g. p. 18; Waldron, ‘Superseding Historic Injustice’, 12. Kymlicka, Multicultural

Citizenship, 220 also describes historical claims in terms of trying to ‘turn back the historical clock’and attempting to ‘restore groups to the situation they would have been in the absence of any historicalinjustice’. This is precisely the understanding of historical arguments which I am arguing against.

5 A. John Simmons, ‘Historical Rights and Fair Shares’, 14 Law and Philosophy (1995), 149–184, 154–156, who points out that such problems concerning counterfactuals are a popular ground for rejectinghistorical entitlement arguments.

6 Ibid, 157.7 Ibid.8 Ibid.9 Ibid, 159.10 Ibid.11 When contemplating the rights of expropriated groups within their account of ‘National Self-

Determination’, Joseph Raz and Avishai Margalit use the general terminology of ‘control’ to de-note both prior territorial rights and the content of contemporary demands for restitution without anysuch distinction between the two on the basis of the evolution of political concepts. See: Joseph Razand Avishai Margalit, ‘National Self-Determination’, in: Joseph Raz, Ethics in the Public Domain,Clarendon Press, Oxford, 1994), 125–145, 143. Similarly, Anthony Smith uses the language of restora-tion to describe the Jewish claim to Palestine. See: Anthony D. Smith, Myths and Memories of the Nation(Oxford University Press, Oxford, 1999) Chap. 8.

12 One could of course go further than this and argue that the full restoration of any given past situation isphilosophically incoherent. On this account, one can never actually reinstitute a past state of affairs sinceno two points in time are identical. This would go for the restitution of a stolen car in precisely the sameway as it works in the territorial connection. I am willing to concede that on this philosophical levelany so-called restoration is merely an attempted approximation of restitution. I doubt however that thistheoretical observation bears significantly on the issue at hand.

13 Waldron, ‘Superseding Historic Injustice’, 14. Note that in using this example, Waldron relies on thetype of analogy between cases of theft of private property and those involving the loss of territorialsovereignty. In the introduction to this book, I argued for the legitimacy of drawing on private property-based arguments in connection with territorial claims. I, therefore, allow myself to pursue this examplethroughout this chapter without further defence.

14 Simmons clearly recognizes that there are significant differences in the languages of ‘reparations’, ‘recti-fication’, ‘compensation’, ‘restitution’ etc., and cites several distinctions between them, each differentin its own way from the one presented here. He, however, does not pursue any such distinction, andexplicitly admits to using all the above more or less synonymously, loosely ‘referring in all cases to thatwhich is due the victim of a wrong in consequence of the wrong’. Simmons, ‘Historical Rights and FairShares’, 149–150, his footnote 2.

15 The well known suggestion to found a Jewish state in Uganda can be understood to have been based onsuch an understanding of the need for compensation. It was, however, rejected and, as far as I know, nogroup has based a territorial demand solely on compensation in this sense with no regard for the locationof its desired territory.

16 Kymlicka, Multicultural Citizenship, 108–120.17 Kymlicka, Multicultural Citizenship, 120.18 David Lyons, “The New Indian Claims and Original Rights to Land”, Social Theory and Practice, 4 (3),

249, on pp. 257–259, 268–269. Lyons argues in favour of the collective approach with regard to Indianrights, but adopts an individualistic approach involving inheritance in connection with their Americanopponents. As for the former, he is not totally faithful to this collective approach. Earlier (pp. 257–259),he dedicates an entire section to the question of inheritance, though he does admit that it bears littleconnection to the Native American issue. As I pointed out in Chapter 2, Yael Tamir is on record asclaiming that all national and other so-called collective rights are actually individual rights. Yael Tamir,Liberal Nationalism (Princeton: Princeton University Press, 1993) 45, 73. Sher’s Approximate Justice,

130 ENDNOTES

though not addressing the issue of individual versus collective rights explicitly, clearly supposes anindividualistic approach. See, e.g., p. 23, and his mention of historical transmission of entitlements andof bequeathing wealth on pp. 24–25. Simmons, ‘Historical Rights and Fair Shares’, 177–180, brieflyraises and argues against the type of objections to the rectification of long-lost lands based on difficultiesconcerning the inheritance of the entitlement in question.

19 As I said, this is also Lyons’ view as regards Native Americans. Lyons, ‘The New Indian Claims’, 257,268–269.

20 Raz and Margalit, ‘National Self-Determination’, 143. Note that for Raz and Margalit, the right to self-determination is a territorial right.

21 Raz and Margalit, ‘National Self-Determination, 143.22 Raz and Margalit, ‘National Self-Determination, 143. Emphasis added.23 Ibid. Emphasis added.24 Waldron, ‘Superseding Historic Injustice’.25 Kymlicka, Multicultural Citizenship, 220.26 Ibid.27 For the view I oppose here, see: Waldron, “Superseding Historic Injustice”, 15, where he speaks of claims

“fading” and “weakening” over time; and: Sher, Approximate Justice, 23–24.28 Ross Poole, ‘National Identity, Multiculturalism, and Aboriginal Rights: An Australian Perspective’, in

Rethinking Nationalism, J. Couture, K. Nielsen and M. Seymour eds. (University of Calgary Press,Calgary, Alberta, Canada, 1998), 407–438, 430; Ross Poole, Nation and Identity (London & New York:Routledge, 1999), 132.

29 Aristotle, The Nicomachean Ethics (Oxford & New York: Oxford World’s Classics, Oxford UniversityPress, Davis Ross, Translator,1998) book 5, Chap. 4, 114–117, 117.

30 To this one might add (for the sake of precision) the general interest in the protection of our rights, as wellas considerations of public order.

31 See, for example: Kymlicka, Multicultural Citizenship, 219–220, where he argues that indigenous peoplesmay themselves have acquired land by its expropriation from prior claimants.

32 Poole, ‘National Identity, Multiculturalism, and Aboriginal Rights: An Australian Perspective’, 428, 430;Poole, Nation and Identity, 129, 131, where he points out that such accusations do not apply to theAustralian case at all.

33 Waldron ‘Superseding’, 15, uses terms such as ‘fading’ and ‘weakening’ to describe his view on someaboriginal land claims.

34 Waldron, ‘Superseding’, 15.35 Waldron, 15.36 Ibid.37 Paul Gilbert, The Philosophy of Nationalism (Westview Press, Oxford, 1998), 102, in reference to: David

Hume, A Treatise of Human Nature, Oxford Philosophical texts (The Complete edition for students) D.F.Norton and M.J. Norton Eds. (Oxford University Press, Oxford, 2000) Book 3, Part 2, Section 3, 326.

38 George Sher, Approximate Justice , Chap. 1: ‘Ancient Wrongs and Modern Rights’.39 Waldron, ‘Superseding’, 18.40 Ibid, 19.41 Waldron, ‘Superseding’, 19. John Simmons, ‘Historical Rights and Fair Shares’, 170–171, totally denies

Waldron’s view whereby moral rights to rectification of past injustices simply fade away with the passageof time. Simmons goes further than I do as he appears to imply that the mere passage of time, consideredstrictly in and of itself, can never have any effect on the substance of our moral (as opposed to legal)rights to the recovery of stolen property, whether it was held privately or collectively prior to the theft.

42 Waldron, ‘Superseding’, 19.43 This is not to deny that monetary compensation may be appropriate where groups have been wronged. I

am, however, dealing only with national territorial claims and as to these, I argue, financial compensationis never the most appropriate remedy, and that often it is totally inappropriate.

44 Waldron, 24.45 Ibid.46 Ibid, 25.47 Ibid.48 This is not to deny that the author clearly recognizes the grave injustice inflicted on aboriginal peoples. He

speaks of the injustice of their expropriation, of stolen lands and ruined lives (Ibid, e.g. p .4 , 26) and oftheir perennial maltreatment (p. 28). I still, however, contend that the concept of past injustices havingbeen superseded is problematic in the way described above.

ENDNOTES 131

49 Waldron, 25.50 Simmons, for instance, accepts at least part of Waldron’s general frame of argument. Nevertheless, he

too denies that the historic injustice ought consequently to be viewed in terms of simply having been‘superseded’. See: Simmons, ‘Historical Rights and Fair Shares’, 169.

51 Waldron, 25, emphasis added.

Chapter 51 Jeremy Waldron: ‘Superseding Historic Injustice’, Ethics 103 (October 1992), 4–28, on p. 26.2 Ross Poole, ‘National Identity, Multiculturalism, and Aboriginal Rights: An Australian Perspective’, in

Rethinking Nationalism, J. Couture, K. Nielsen and M. Seymour (eds.) (University of Calgary Press,Calgary, Alberta, Canada, 1998), 407–438, 431; Ross Poole, Nation and Identity (Routledge, London &New York, 1999), 133–134. In a similar vein, John Simons points out with regard to North America thatLocke ‘was certainly right about the inefficiency of aboriginal land use, at least in this one sense—thereis not enough land in the world to support us all at the population density levels characteristic of originalNative American Tribal life.’ John Simons, ‘Historical Rights and Fair Shares’, 14 Law and Philosophy(1995), 149–184, 183.

3 Poole, ‘National Identity Multiculturalism, and Aboriginal Rights’, 431; Poole, Nation and Identity, 134.4 Ibid. Actually, while one indeed does not have to be a devout utilitarian in order to adhere to such a view, one

does have to accept utilitarian arguments, at least up to a point, as part of one’s conception of morality.I take this to be relatively uncontroversial, as Poole does. Strict Kantians and Rawlsians will admittedlyhave a problem here.

5 Margaret Moore, ‘The Territorial Dimension of Self-Determination’, in M. Moore (ed.), National Self-Determination and Secession. Oxford: Oxford University Press, pp. 134–157, 148.

6 Ibid.7 Ibid.8 John Locke. The Second Treatise of Government, Thomas P. Peardon ed. (The Library of Liberal Arts,

Prentice Hall Inc. New Jersey, 1952), Chap. 5 ‘On Property’, Par. 32, on p. 23.9 Locke. The Second Treatise of Government, Chap. 5, Par. 32, p. 20.10 Locke. The Second Treatise, 22–23 (Par. 36).11 Ibid, 24–25, (Locke, II, Par. 38).12 Ibid, 23, (Locke II, Par. 37); pp. 26–27 ( Par. 43–44); p. 29 (Par. 49).13 Ibid, 17 (Par. 26); p. 18 (Par. 30); p. 26 (Par. 43).14 Ibid, 23 (Par. 37).15 Ibid, 24 (Par. 38).16 Ibid, 25 (Par. 42).17 See, for just some of the discussion of the so called “Lockean Proviso”: C.B. MacPherson, The Polit-

ical Theory of Possessive Individualism: Hobbes to Locke (Oxford University Press, Oxford, 1962),pp. 211–214; R. Nozick, Anarchy, State, and Utopia (Basic Books, Harper Collins publishers, U.S.A.,1974), pp.175–177; J.L. Mackie, Ethics: Inventing Right and wrong, (Penguin Books, Harmondsworth,Middlesex, England, 1977), pp. 175–176. See also: J. Waldron, The Right to Private Property supra note5, pp. 209–218, who interprets this Lockean clause quite differently than all the above, viewing it as farless problematic. According to Waldron, the “enough and as good left in common for others” clause wasnever intended by Locke as a necessary condition for appropriation. I return to this view in chapter 6.

18 Margaret Moore, ‘The Territorial Dimension of Self-Determination’, 149; Margaret Moore, The Ethics ofNationalism (Oxford & NY: Oxford University Press, 2001), 183.

19 Ibid.20 Ibid.21 Poole, ‘National Identity, Multiculturalism, and Aboriginal Rights’, 427, 428–429, 431; Poole, Nation

and Identity, 130–131, 135; James Tully, ‘Rediscovering America: The Two Treatises and AboriginalRights’, in James Tully, An Approach to political philosophy: Locke in Contexts (Cambridge UniversityPress, Cambridge, 1993), 137–176; and in: G.A.J. Rogers ed., Locke’s Philosophy: Content and Context(Clarendon Press, Oxford, 1994), 165–196; John Douglas Bishop, ‘Locke’s Theory of Original Appro-priation and the Right of Settlement in Iroquois Territory’, Canadian Journal of Philosophy, Vol. 27,no. 3 (Sep. 1997), 311–337; John Simons, ‘Historical Rights and Fair Shares’, 183.

22 This would answer objections like Moore’s and David Lyons’, who similarly rejects Locke’s implicitassumption whereby cultivation is the only proper way of using land. David Lyons, ‘The New Indian

132 ENDNOTES

Claims and Original Rights to Land’, Vol. 4 no. 3 Social Theory and Practice, (fall 1977), 249–272, 249.The proposal to retain Locke’s basic theory, minus his culturally biased assumptions is at the heart of J.D.Bishop, ‘Locke’s Theory of Original Appropriation and the Right of Settlement in Iroquois Territory’, e.g.p. 312, 335–337; Both he and James Tully suggest that, without the unjustified Eurocentric presumptions,Locke’s theory would in fact work in favour of Aboriginal land claims. Tully, An Approach to politicalphilosophy: Locke in Contexts (1993), 137–176, 175–176. See also Simons, “Historical Rights and FairShares”, 183.

23 Simmons, ‘Historical Rights and Fair Shares’, 183.24 Moore, ‘The Territorial Dimension of Self-Determination’, 149; Moore, The Ethics of Nationalism, 183.25 John Rawls. A Theory of Justice (The Belknap Press of Harvard University Press, Cambridge,

Massachusetts, 20th printing, 1994, copyright 1971), 62. For Rawls, the primary social goods are chiefly‘rights and liberties, powers and opportunities, income and wealth’, to which he later adds self-respect.All I am borrowing from him is the basic idea that there are certain fundamental goods that every rationalperson can be assumed to value, whatever else he values. Admittedly Rawls himself has been widelycriticized for this argument; nevertheless, I take it to be a convincing claim.

26 Rawls, A Theory of Justice, 92.27 This, in fact, seems to me to be a far less culturally biased assumption than assuming that every rational

man necessarily values income and wealth, which Rawls regards as a primary good for every rationalindividual, regardless of whatever his rational plans of life are in detail. Rawls, A Theory of Justice, 62,92.

28 It is true that cultures can vary in the degree of value which they attach to these material fundamental goods,which is precisely why I suggested we expand the Lockean view of use so that it may encompass variousforms of land use. But still, there is, contrary to what Moore argues, a lowest common denominatorwhich enables comparison. Inefficient use of land is, at the very least, an expensive taste.

29 ‘The Territorial Dimension of Self-Determination’, 149; Moore, The Ethics of Nationalism, 183.30 Moore, ‘The Territorial Dimension of Self-Determination’, 149; Moore, The Ethics of Nationalism,

183.31 Moore, ‘The Territorial Dimension of Self-Determination’, 149; Moore, The Ethics of Nationalism, 183.

Emphasis added.32 Locke, The Second Treatise of Government, Chap. 5, ‘Of Property’, 16–30, e.g. on p. 17, where Locke

explains his theory of original acquisition and emphasizes that once the original appropriators’ labourhas been mixed with the object in question ‘no man but he can have a right to what that (the labor) isonce joined to’ (II. Par. 27); p. 20 (Par. 32), where Locke speaks of the legitimate annexation throughlabour of land ‘which another had no title to’; p. 27 (Par. 45), where he speaks of the acquisition ofland which previously lay in common; p. 28 (Par. 46) where he speaks in terms of acquiring land byremoving it from the state of nature. There are ample examples of this throughout the chapter. Nowheredoes Locke suggest that land that has already been removed from the common, or the state of nature,and is being used (at least in the sense in which he comprehended the use of land), should be reallocatedto someone else if it could be shown that they would use it more efficiently. On this same point see also:Hillel Steiner, ‘Territorial Justice’, in Theories of Secession, Percy B. Lehning ed. (Routledge, Londonand New York, 1998), 60–70, 65.

33 Bishop, ‘Locke’s Theory of Original Appropriation and the Right of Settlement in Iroquois Territory’,311–337, 316. In suggesting this understanding of Locke, I am also drawing on Jeremy Waldron’sinterpretation of Locke’s enclosure requirement. In The Right to Private Property (Clarendon Press,Oxford, 1988), 174, where Waldron adopts Olivecrona’s suggestion whereby enclosure is a necessary,thought not a sufficient, condition for appropriation.

34 Bishop, ‘Locke’s Theory of Original Appropriation’, 327. Admittedly, Locke is a bit vague on the questionof what sort of improvement exactly counts for the purposes of acquisition. This vagueness will neces-sarily spill over into any attempt at applying an efficiency criterion to national acquisition of territory aswell. Still, in the later case, it would seem that many if not most, cases would be clear-cut. First, it wouldbe reasonable to assume that some test of threshold efficacy would be applied. Simply holding a territorycould not, on any reasonable interpretation of the Lockean account, amount to appropriation by use.Second, most ‘first occupants’ of any territory will necessarily have made considerable improvementsto it (thus satisfying the requirement), if only in order to guarantee themselves the minimum producenecessary for subsistence.

35 Locke, The Second Treatise of Government, 17 (II, Par. 27). Emphasis added.36 David Hume, A Treatise of Human Nature, Mossner, Ernest, G. (ed.) (Penguin Classics, London, 1985),

Book III, Part II, Sec. II & III, 536–555.

ENDNOTES 133

37 Ibid.38 This link between utility and stability has been taken up by some modern-day writers on property rights as

well, see for example Lawrence C. Becker, Property Rights (Routledge & Kegan Paul, Boston, London,Melbourne and Henley, 1977), 101–102. And: Stephen R. Munzer, A Theory of Property (CambridgeUniversity Press, Cambridge, 1990), 79–80.

39 This last point does not work against recognizing utilization as a factor morally relevant to entitlement. Weaccept the fact of inhabitance of a territory as relevant to the question of entitlement to it, even thoughthis factor also applies to most groups demanding territory.

40 Moore, ‘The Territorial Dimension of Self-Determination’, 149; Moore, The Ethics of Nationalism, 183.41 Locke, The Second Treatise, 22–23 (Par. 37).42 Ibid.43 Jeremy Waldron, ‘Enough And As Good Left For Others’, The Philosophical Quarterly, Vol. 29, 319–328

(1979), 323.44 Waldron, ‘Enough And As Good Left For Others’, 323.45 Crawford B. MacPherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford

University Press, Oxford, 1962), 211–212, as quoted by Waldron, ibid. My Emphasis.46 Immanuel Kant, Groundwork of the Metaphysic of Morals, (translated and analyzed by H.J. Paton, Harper

Torchbooks/The Academy Library, Harper & Row, Publishers, New York, N.Y., 1964), Chap. 2, p. 88.47 Ibid, 89.48 Ibid, 89–91.49 Ibid, 90.50 Ibid.

Chapter 61 David, Citizenship and National Identity (Polity Press, Cambridge, Oxford and Malden, MA, 2000), 113,

125, 140.2 Miller, On Nationality, 81.3 Miller, On Nationality, 81, ibid; Miller, Citizenship and National Identity, 27, 113.4 David Miller’s principle of nationality does offer some guidelines on these matters. Miller, On Nationality,

esp. on pp. 109–118; Citizenship and National Identity, Chapters 7 and 8. I refer to these works at variouspoints later on in this chapter.

5 Miller, Citizenship and National Identity, 125, 129, 140.6 Thomas Baldwin, ‘The Territorial State’, in Jurisprudence—Cambridge Essays (H. Gross and T. Harrison

Eds. Clarendon Press, Oxford, 1992), Chap. 10, 209–230.7 Baldwin, ‘The Territorial State’, 228.8 Joseph Raz and Avishai Margalit, ‘National Self-Determination’, in Joseph Raz, Ethics in the Public

Domain, Clarendon Press, Oxford, 1994, 125–145.9 Raz and Margalit, ‘National Self-Determination’, 126.10 Raz and Margalit, ‘National Self-Determination’, 127, 139.11 Raz and Margalit, ‘National Self-Determination’, 141, 142, 143.12 E.g.: Brian Barry, ‘Self Government Revisited’, in David Miller and Larry Seidentop (eds.) The Nature of

Political Theory (Clarendon Press, Oxford, 1983), 121–154, 127; and, Margaret Moore (ed.), NationalSelf-Determination and Secession, (Oxford University Press, Oxford, 1998, Margaret Moore ed.) 2,134–135.

13 Raz and Margalit, 140–141. David Miller criticizes the idea that majorities’ consent to secession sufficesto justify it in: Miller, On Nationality, 111–112.

14 Yael Tamir, Liberal Nationalism (Princeton University Press, Princeton, New-Jersey, 1993), Chap 3,57; Yael Tamir, ‘The Right to National Self-Determination’, Social Research, Vol. 58 (3) (Fall 1991),pp. 565–590, 565.

15 Yael Tamir, Liberal Nationalism, 57.16 Tamir, ‘The Right to National Self-Determination’, 566.17 Tamir, Liberal Nationalism, 73; ‘The Right to National Self-Determination’, 586.18 Tamir, Liberal Nationalism, 73–74. In fact, Tamir is a little unclear about the territorial aspect of her

interpretation. The suggestion that her approach is totally non-territorial is made by Judith Lichtenberg,‘Nationalism For and (Mainly) Against’, in: Robert Mckim and Jeff McMahan, The Morality of Nation-alism (Oxford University Press, Oxford & New-York, 1997), 158–175, 165. Lichtenberg’s own account

134 ENDNOTES

of the right to national self-determination is no more illuminating on these matters: ‘Nationalism Forand (Mainly) Against’, 162–164.

19 Tamir, ‘The Right to National Self-Determination’, 587.20 Liberal Nationalism, 74–75; ‘The Right to National Self-Determination’, 587.21 Liberal Nationalism, 74–75.22 Avner De-Shalit, ‘National Self-Determination: Political, not Cultural’, Political Studies (1996), XLIV,

906–920, 916–917.23 For just one among many further accounts of National Self-determination which do not advance us

any further towards solving territorial problems, see: David Copp, ‘Democracy and Communal Self-Determination’, in: The Morality of Nationalism, 277–300, 278–279, where the principle is defined.Copp’s interpretation of the principle is not only unhelpful territorially, but also, as he puts it, non-national but rather societal, and amounts to the right to hold on to, or form, an independent state.

24 John Locke. The Second Treatise of Government, Chapter 5, Par. (25–27).25 Ibid, Par. 27.26 Ibid, Par. 32.27 Ibid, Par. 32.28 For a detailed dismissal of nations’ ‘first occupancy’ arguments, see: Chaim Gans, The Limits of National-

ism, Cambridge University Press, Cambridge, 2003, 105–109. See also: Jeremy Waldron, ‘SupersedingHistoric Injustice’, Ethics 103 (October 1992), 4–28, 28, where the author appears to dismiss ‘initialacquisition’ arguments voiced by aboriginal nations out of hand, reducing them to simplicities such as‘first come, first served’, and ‘we were here first’.

29 See: Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988), 184–191; ‘TwoWorries About Mixing One’s Labour’, The Philosophical Quarterly, 33 (130), 37–44, 39–44.

30 Waldron, The Right to Private Property, 191.31 Ibid, 192.32 Locke, Par. 28, 37 42, 43.33 Ibid, Par. 42. Later, Locke introduces a similar comparison with regard to land, Par. 23.34 Ibid, Par. 33.35 Locke, Par. 32–45.36 Waldron, The Right to Private Property, 193.37 Locke, Par. 40, 43.38 Waldron, The Right to Private Property, 193.39 Locke, Par 41, 43.40 Waldron, The Right to Private Property, 193; Waldron, ‘Two Worries About Mixing One’s Labour’,

37–38, 44. Discussing Locke’s ‘Labour Theory of Value’, Waldron points out that this theory ‘can beexpressed independently of the “mixing one’s labour” doctrine’, and therefore ‘is not affected by thelatter’s incoherence, and can stand by itself’.

41 Nozick, Anarchy, State, and Utopia, 175.42 Waldron, The Right to Private Property, 192.43 Locke, supra note 33, p. 24 (Par. 38).44 Hillel Steiner. ‘Territorial Justice’, in Theories of Secession, Percy B. Lehning ed. (Routledge, London and

New York, 1998), 60–70, 66; Thomas Baldwin, ‘The Territorial State’, 213, both in reference to Locke,The Second Treatise of Government, Chap. 8, ‘Of the Beginning of Political Society’, esp. on pp. 68–69(Par. 120–121).

45 Locke, 21 (Par. 35).46 Locke, Par. 42. For a variety of critiques of Locke’s cultural bias as regards the appropriate use of land

see: James Tully, ‘Rediscovering America: The Two Treatises and Aboriginal Rights’, in James Tully, AnApproach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993),137–176; John Douglas Bishop, ‘Locke’s Theory of Original Appropriation and the Right of Settlementin Iroquois Territory’, Canadian Journal of Philosophy, 27 (3) (September 1997), 311–337: MargaretMoore, ‘The Territorial Dimension of Self-Determination’, in Margaret Moore (ed.), National Self-Determination and Secession, (Oxford: Oxford University Press, 1998) 134–157, 148–149; MargaretMoore, The Ethics of Nationalism 181–184.

47 Locke, Par. 27.48 Waldron, ‘Enough And As Good Left For Others’; Waldron, The Right to Private Property, 209–218.49 Locke, Par. 37. Waldron, ‘Enough And As Good Left For Others’, 323.50 In ‘Rediscovering America’, Tully points out that, in reality, the English colonists of America, and pre-

sumably Locke himself, saw their settlement project as leaving ‘as much and as good’ for the natives of

ENDNOTES 135

that continent. He quotes one of the prominent colonists as ‘enunciating a principle similar to Locke’sproviso’ when he wrote that: ‘ . . . if we leave them [Native Americans] land sufficient for their use,we may lawfully take the rest, there being more than enough for them and us’. Tully, ‘RediscoveringAmerica’, 151 (in reference to The Winthrop Papers).

51 Locke, Par. 27.52 Tully, ‘Rediscovering America’, 140–141, 143–144, 147, 159; Bishop, ‘Locke’s Theory of Original Ap-

propriation’, 311, 329.53 Tully, ibid, ‘Rediscovering America’, mainly on 139–166. Note that, in this historical connection, the

property arguments advanced by Locke attached themselves to collectives as well as to individuals, asLocke notoriously defended not only individual colonists’ property claims but also the alleged rights ofthe British crown over the colonies established by its nationals in North America (Tully, 165).

54 Ibid, 166–171.55 Tully, ibid, ‘Rediscovering America’, throughout, esp. on pp. 175–176; Bihop, ‘Locke’s Theory of Original

Appropriation’, throughout, esp. on p. 312.56 E.g., Jeremy Waldron, whose useful comments on a previous version of this paper sparked many of the

points of clarification in this present section.57 Paul Gilbert, The Philosophy of Nationalism, Westview Press (Colorado & Oxford, 1998), 94.58 Ibid.59 David Miller, ‘Review of Gilbert, The Philosophy of Nationalism’, 16 (2) Journal of Applied Philosophy,

(1999), 191–192, emphasis added.60 David Miller, ‘Liberalism and Boundaries: A response to Allen Buchanan’ in: Allen Buchnan and Margaret

Moore (Eds.) Forthcomming in Making and Unmaking Bounderies (Princeton NJ: Princeton UniversityPress), 4, my emphasis.

61 Cf.: Anthony D. Smith, Myths and Memories of the Nation (Oxford University Press, Oxford, 1999),Chap. 5, ‘Nation an Ethnoscape’, 150, where he states that: ‘What is at stake is the idea of an historicand poetic landscape, one imbued with the culture and history of a group, and vice versa, a group part ofwhose character is felt by themselves and outsiders to derive from the particular landscape they inhabitand commemorated as such in verse and song’.

62 Note that Gilbert treats the two views as mutually exclusive, while definitely preferring the latter.63 Gilbert, The Philosophy of Nationalism, 98.64 Miller, Citizenship and National Identity, (Oxford and Malden MA: Poity Press, 2000), 116–117. Emphases

added.65 See: Tamir, Liberal Nationalism, 35–36; Tamir, ‘The Right to National Self-Determination’, 587; Miller,

On Nationality, 10–11; Raz and Margalit, ‘National Self-Determination’ esp. on pp. 133–134 wherethey discuss the value of encompassing groups and their importance to individual well-being; Raz, TheMorality of Freedom (Clarendon Press, Oxford, 1986), 207; Neil McCormick, ‘Liberal Nationalismand Self-Determination’, in D.M. Clarke, and Ch. Jones (Eds.), The Rights of Nations—Nations andNationalism in a Changing World (Cork University Press), Chap. 3, 65–87, 75–76.

66 Waldron, 194, in reference to Karl Olivecrona.67 Waldron, ibid, 195.68 Ibid. This is Olivecrona’s suggestion in K. Olivecrona, ‘Locke’s Theory of Appropriation’, Philosophical

Quarterly, Vol. 24 (1974).69 Waldron, The Right to Private Property, 196, where he quotes Olivecrona as stating that: ‘The farmer

feels united to the soil on which he works. The town dweller feels a similar feeling for the house that ishis own; something of himself sticks in that house where he has been living so long with his family’.

70 Waldron, The Right to Private Property, 196.71 Ibid.72 Ibid.73 Waldron, The Right to Private Property, ibid, 196–198.74 This was true of North America as early on as the 17th century. See: Tully, 143, where he discusses the

colonisation of Carolina and the recruitment of settlers. The incentives given to settlers of the westof the continent by the independent American government in the 19th century are, of course, wellknown. In Australia, British emigres (or deportees) were granted land to settle on. For a more recentexample of officially directed settlement projects see: David M. Heer, ‘Policy Legislation Effectingthe Pacific Region: The United States and the USSR’, Comparative Social Research, Vol. 7, 1984,369–385.

75 This is a well-known fact acknowledged by both Israelis and Palestinians, and often complained aboutby the latter. See, for example, Janet Lughod, ‘Israeli Settlement in Occupied Arab Lands: Conquest to

136 ENDNOTES

Colony’ Journal of Palestine Studies, Vol. 11 2(42) (Winter 1982), where the writer complains at lengthof the extent to which Jewish movement into the West Bank has been guided by various official Israeliplans for settlement.

76 I am grateful to Chaim Gans for pointing out this feature of the expectations issue and all the intricaciesinvolved therein.

77 Waldron, The Right to Private Property, 196–198.78 I think this is a large part of Jeremy Waldron’s thinking in “Superceding Historical Injustice”.79 Margaret Moore, The Ethics of Nationalism (Oxford & NY: Oxford University Press, 2001), 194.80 Miller, Citizenship and National Identity, 196, Miller’s note 14, emphasis added.81 Both David Miller and Jeremy Waldron acknowledge and resign themselves to similarly morally hazardous

conclusions on related issues. See: Miller, Citizenship and National Identity, 196; (though to a lesserdegree of acceptance) Jeremy Waldron, ‘Superseding Historical Injustice’, Ethics, 103 (Oct. 1992), 4–28,25.

82 Miller, ‘Liberalism and Boundaries: A response to Allen Buchanan’, 5.

Chapter 71 E.g.: Brian Barry, ‘Humanity and Justice in a Global Perspective’, Nomos, Vol. 24 (J.R. Pennock & J.W.

Chapman eds, New York, 1982), 232, 235; Brian Barry, Democracy, Power, and Justice (ClarendonPress, Oxford, 1989; Charles Beitz, Political Theory and International Relations (Princeton, 1979), pt.3, sect. 2; Hillel Steiner, An Essay on Rights, (Blackwell, Oxford U.K. & Cambridge U.S.A., 1994),Chap. 8.

2 Hillel Steiner, ‘Territorial Justice’, in Theories of Secession, Percy B. Lehning ed. (Routledge, London &New York, 1998), 60–70. Others have hinted at this idea as well, though none has articulated it soexplicitly, e.g.: Jeremy Waldron, ‘Superseding Historical Injustice’, Ethics, Vol. 103 (October 1993),4–28, 16, 20–26, where principles of egalitarian distribution of land appear to form part of the basis forthe author’s conclusion regarding the supersession of the territorial injustice inflicted upon AmericanIndians.

3 Steiner, ‘Territorial Justice’.4 Steiner, An Essay on Rights, ibid, 267.5 Ibid, 267–268.6 Ibid, 267.7 Ibid.8 Ibid, 268.9 Ibid, 270.10 Briefly stated, Steiner goes on to suggest that a complex international mechanism be established for imple-

menting these egalitarian principles; specifically, he proposed what he dubs a ‘global fund’ into whichso-called over-appropriators will deposit their redress payments in compensation for their respectiveover-appropriations for the benefit of the world’s ‘under-appropriators’.

11 Aristotle, The Nicomachean Ethics (Oxford World’s Classics, Oxford University Press, Oxford & NewYork, Davis Ross, Translator, 1998) book 5.

12 Steiner, ‘Territorial Justice.’13 Ibid. I am by no means committing myself here to the view that this would indeed be the most just global

arrangement. All I am arguing for is that, even on the assumption that global egalitarianism is the ideal,not much can be derived from this view to guide us in the resolution of bilateral conflicts within anon-ideal overall situation. An Essay on Rights, Chap. 8.

14 Steiner, An Essay on Rights, 268.15 Steiner, ‘Territorial Justice’, 67.16 Ibid.17 Ibid, 68.18 Ibid.19 Steiner, ‘Territorial Justice’, ibid; An Essay on Rights, Chap. 8.20 Steiner, ‘Territorial Justice’, 68.21 Ibid.22 David Miller, ‘Justice and Global Equality’, in Andrew Hurrell and Ngaire Woods (eds.) Inequality,

Globalization and World Politics (Oxford University Press, Oxford, 1999), 187–210, 197.23 Steiner, ‘Territorial Justice’, 68.

ENDNOTES 137

24 Miller, On Nationality (Clarendon Press, Oxford, 1995), 106. See also: Miller, ‘Justice and GlobalEquality’, 193–196.

25 Cf: Miller, ‘Justice and Global Equality’, 194.26 See: Robert Nozick, Anarchy, State, and Utopia (Basil, Blackwell, Oxford, 1974), 198, 219.27 Steiner himself is in fact strongly committed to the idea of ‘self-ownership’. Thus, he could not consistently

endorse such a defence of his egalitarian proposal. See: Steiner, An Essay On Rights, 231–265, esp. onpp. 231–237; 241–244; 265; Hillel Steiner, ‘Choice and Circumstance’, in A. Mason (ed.) Ideals ofEquality (Blackwell, Oxford, 1998), pp. 95–111, esp. on pp. 98, 100.

28 Steiner, ‘Territorial Justice’, 67.29 Ibid.30 John Locke. The Second Treatise of Government, Thomas P. Peardon ed. (The Library of Liberal Arts,

Prentice-Hall Inc. New Jersey, 1952), Chap. 5 ‘Of Property’, on p. 26 (Par. 43).31 Locke, ibid.32 Cf: Michael Walzer, Spheres of Justice—A Defense of Pluralism and Equality (Basil Blackwell, Oxford,

1983), 43.33 Steiner, ‘Territorial Justice’, 66, 68.34 Miller, On Nationality, 106.35 This is not to deny that in some cases nations and their respective members may also attribute additional,

cultural, value to forms of natural resources other than land, for instance where a culture revolves aroundthe use of a particular type of animal (e.g. hunting it, or sacrificing it), a particular water reservoir, etc.

36 See: Chaim Gans, ‘Historical Rights The Evaluation of Nationalist Claims to Sovereignty’, PoliticalTheory, Vol. 29 (1) (February 2001), 58–79.

37 Anthony D. Smith, National Identity (University of Nevada Press, Reno, Nevada, 1991), pp. 9, 11, 13–15,40, 43.

38 Walzer, Spheres of Justice, 44.39 Ibid.40 For the present purposes, I am taking no stand on the question of precisely what form of territorial

organisation is a necessary minimum in order to fulfil individuals’ cultural-national interests. As I alreadypointed out earlier, it is often assumed that the optimal form thereof is a sovereign nation state. It does notfollow that this is the only way in which national interests can be satisfied territorially. Other, perhaps lesssatisfactory but still possibly sufficient, territorial arrangements might include national autonomy withina certain region which remains nonetheless under the jurisdiction of another state. Tamir speaks of thenecessity in attaining a so-called ‘public sphere’ in which members of a nation constitute a majority andwithin which the communal aspects of their culture can be fully realized. Yael Tamir Liberal Nationalism(Princeton University Press, Princeton, New Jersey, 1993) Chap. 3, 70–71. Be that as it may, all I amsuggesting here is that, by virtue of its commitment to universality, liberal nationalism necessarily yieldsat least those egalitarian duties that are required in order to achieve whatever this minimum is for all.

41 Raz, The Morality of Freedom (Clarendon Press, Oxford, 1986), 218, 220–222, 228.42 Miller, ‘Equality and Justice’, 21–36, 21–23.43 Cf: Miller, ‘Justice and Global Equality’, 198–204.44 Rousseau, Jean Jacque, The Social Contract, book I, Chap. 9 (Everyman, London and Vermont, 1993),

197. Thomas Baldwin, ‘The Territorial State’, in: Jurisprudence—Cambridge Essays, H. Gross andR. Harrison eds. (Clarendon Press, Oxford, 1992), Chap. 10, 207–230, 209 quotes Rousseau in thisconnection; as does Chaim Gans, ‘Historical Rights The Evaluation of Nationalist Claims to Sovereignty’,his footnote 11.

45 Rousseau, The Social Contract, book II, Chap. 9, ibid, 219.46 Rousseau, ibid, Chap. 10, 222.47 Miller, On Nationality, 106.48 Rousseau, The Social Contract, book II, Chap. 9, 222.49 Ibid.

Chapter 81 Anthony D. Smith, Myths and Memories of The Nation (Oxford University Press, Oxford, 1999), 149.2 I refer, of course, to Yael Tamir’s Liberal Nationalism, Princeton University Press, Princeton New Jersey,

1993), which I have cited repeatedly throughout and which together, with its author, played an importantpart in inspiring this book.

138 ENDNOTES

3 Allen Buchanan, ‘The Making and Unmaking of Boundaries: What Liberalism Has to Say’ in AllenBuchanan and Margaret Moore, eds. Making and Unmaking Boundaries, Princeton University Press,Princeton New Jersey, forthcoming), 2.

4 Cf: Buchana, ibid, 6.5 Chaim Gans, ‘Historical Rights—The Evaluation of Nationalist claims to Sovereignty’, Political Theory,

Vol. 29 (1) (February 2001), 58–796 See: Gans, “Historical Rights”, 66–76.

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